Recreational Litigation

Recreational Litigation

It was used in a case (Beachboard v U.S., 727 F.2d 1092 (1984)) where the judge points out that the appellant paid more than double in filing fees to appeal the decision than the amount of the original judgment against him.

The Court said:

Beachboard stated at oral argument that he brought this appeal to cause a change in the law. Changes in the law, absent a true case or controversy, are the province of the Congress, not the judiciary. It is conceivable that one with but a very small personal stake in the outcome may argue in good faith that time and circumstances dictate a change in the law. There is no basis for finding that good faith here.

Having failed to timely object to the bill of costs, to timely file a motion to strike, and to obtain in banc consideration of his motion to strike, Beachboard pursued the matter collaterally by suing in the Claims Court and appealing here. Beachboard has thus had: (1) consideration and dismissal of his complaints in the District Court; (2) an affirmance of that dismissal by the Court of Appeals; (3) a neglected opportunity to object to costs; (4) review of his motion to strike; (5) review of his request for in banc consideration of his motion to strike; (6) dismissal of his complaint seeking a declaratory judgment; and (7) review of that dismissal. Enough is enough.

Beachboard’s brief reflects an acquired affinity for legal research. Even the most unsophisticated researcher untrained in law would with little effort find the authorities establishing the lack of jurisdiction here of the Claims Court. If perchance those authorities were missed, a researcher would recognize the res judicata effect of the denials by the Court of Appeals of the motion to strike. Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).

That a small amount is involved does not alone require a finding that an appeal is frivolous. Nonetheless, the amount to be gained may be weighed against the cost and probability of obtaining it as one factor. The amount here involved is $54.40. That amount was assessed and reaffirmed twice by the Court of Appeals. Against that amount must be balanced the very substantial costs to the taxpayers in defending and considering Beachboard’s efforts to delay its payment. See McCray v. Sapulpa Petroleum Co., 31 F.2d 437 (10th Cir.1929). Moreover, devotion of substantial quantities of scarce resources by the Department of Justice and the Courts subtracts from those available to Beachboard’s fellow citizens, in whose interests as potential cost-payers he purports to act. The amount of $54.40 must also be balanced against the zero probability of success before this court in an appeal of a dismissal where the trial court clearly lacked jurisdiction. 1095*1095 See Simon & Flynn, Inc. v. Time Inc., 513 F.2d 832, 185 USPQ 325 (2d Cir.1975).

To delay a court-required payment of $54.40, Beachboard paid $130.00 in filing fees in the Claims Court and this court, and spent time and money preparing and filing briefs. At oral argument he said he has “several cases pending”. The unescapable conclusion is that Beachboard is engaged on this appeal in “recreational” litigation, misusing precious and limited resources better spent on meritorious claims of his fellow citizens to whom those resources belong. The present appeal is frivolous.

Beachboard was made aware when he docketed this appeal of this court’s opinion in Asberry v. U.S. Postal Service, 692 F.2d 1378, 215 USPQ 921 (Fed.Cir.1982) in which it was stated that damages and costs would be awarded in acordance with Rule 38 Fed.R.Civ.P. against those who filed or proceeded with frivolous appeals. See also, Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 220 USPQ 193 (Fed.Cir.1983).

The opinion is cited in about a dozen cases involving frivolous lawsuits.


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